Agueci and Secretary, Department of Social Services (Social services second review) - [2024] AATA 552

Agueci and Secretary, Department of Social Services (Social services second review) [2024] AATA 552 (2 April 2024)
Division:GENERAL DIVISION
File Number(s): 2023/1530
Re:Giuseppe Agueci
APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date(s) of hearing: 25 January 2024
Date of written reasons: 2 April 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review is set aside and remitted to the Secretary for redetermination, with the finding that Mr Agueci was not a member of a couple from 27 April 2022.
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Mr S Evans, Member
CATCHWORDS
AGE PENSION – rate at which Applicant’s age pension should be paid – whether ‘member of a couple’ for the purposes of s 4(2) of Social Security Act 1991 – application of criteria for forming opinion about relationship s 4(3) - whether special reason Applicant is not to be treated as a member of a couple s 24(2) – decision set aside and remitted for redetermination.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991
CASES
Cullinane and Secretary, Dept of Family and Community Services, Re [2004] AATA 789
Pelka and Secretary, Department of Family and Community Services [2006] FCA 735
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr S Evans, Member
2 April 2024
INTRODUCTION

Giuseppe Agueci (the Applicant) is 75 years old and receives age pension.[1] On 28 May 2022, Services Australia (the Agency) decided that he was living as a couple with his wife, Mrs Agueci, and he was paid age pension at the partnered rate.[2] Mr Agueci contends that he and Mrs Agueci are separated and living under one roof and the discretion not to treat him as a member of a couple should be exercised.
[1] Respondent’s Statement of Facts, Issues and Contentions, [3]-[5].
[2] Ibid, [9]; T-Documents, T7, p.80.
For the reasons that follow, the reviewable decision will be set aside and remitted for redetermination with the finding that Mr Agueci was not a member of a couple.
BACKGROUND
Mr Agueci began receiving age pension at the single rate on 27 September 2013.[3] On 30 July 2016 he married Mrs Agueci, who is a Philippines national.[4] After they married, Mrs Agueci returned to the Philippines while her visa application was processed.[5] Between 20 July 2016 and 13 January 2017, Mr Agueci was paid age pension at the single rate. From 14 January 2017 Mr Agueci was paid age pension at the partnered rate.[6]
[3] T-Documents, T16, p.116.
[4] Ibid, p.117.
[5] Ibid, T2, p.9.
[6] Ibid, T16, p.117.
On 27 April 2022, Mr Agueci provided a relationship details ‘separated under one roof form’ (SUOR form) to the Agency.[7] On 9 May 2022, Mr Agueci provided a Separation Details (Mod S) form in which he confirmed having separated from Mrs Agueci on 15 December 2021 and that he did not expect they would get back together.[8] On 9 May 2022, Mrs Agueci also provided a SUOR form in which she also confirmed she and Mr Agueci had separated on 15 December 2021.[9]
[7] Ibid, T4, p.48-60.
[8] Ibid, T5, p.61-66.
[9] Ibid, T6, p.67-79.
On 28 May 2022, the Agency decided that Mr Agueci was living as a couple with Mrs Agueci and on that basis her income should continue to be taken into account when assessing his rate of age pension.[10] Mr Agueci disagreed with the decision which was affirmed by an Authorised Review Officer (ARO) at the Agency on 24 August 2022.[11] Mr Agueci appealed the ARO decision at the Social Services and Child Support division of the Tribunal (AAT1) which affirmed the decision on 23 December 2022.[12]
[10] Ibid, T7, p.80.
[11] Ibid, T13, p.90-93.
[12] Ibid, T2, p.3-10.
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
(i)whether Mr Agueci was a member of a couple from 27 April 2022 onwards; and, if so,
(ii)whether there is a special reason why he should not be treated as a member of a couple for the purpose of calculating his age pension.
RELEVANT LEGISLATIVE FRAMEWORK
Section 1064 of the Social Security Act 1991 (the Act) contains the rate calculator to be used for the purposes of calculating the rate of age pension payable to a person. The Act provides that the rate is affected by whether a person is single or a member of a couple. The partnered rate of age pension is less than the single rate because where a person is a member of a couple, it is expected they will pool their resources and share their expenses.
Subsection 4(2) of the Act provides the definition for a ‘member of a couple’ for the purposes of the Act. Relevantly, paragraph 2(a) states that a person is a member of a couple if they are legally married or in a relationship with another person and they are not living separately and apart from each other on a permanent or indefinite basis.
‘Living separately and apart’ requires considerations of both physical and mental elements and the mental element is independent of whether the parties lived in the same house.
Subsection 4(3) of the Act sets out the criteria for forming an opinion about whether a person is a member of couple as follows:
(3)       In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) ... the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)       the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b)       the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c)       the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d)       any sexual relationship between the people;
(e)       the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
(3A)     The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
...
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services, the Tribunal provided the following useful analysis:
“Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story”.[13]
[13] [2004] AATA 789, [16].
In Pelka v Secretary, Department of Family and Community Services, the Federal Court stated that assessment of the criteria in subsection 4(3) requires consideration of the totality of the relationship as well as the specific factors identified.[14]
[14] [2006] FCA 735, [46].
The Social Security Guide (the Guide) provides relevant departmental policy guidance.[15] It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.[16]
[15] Guide to Social Security Law.
[16] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
Subsection 4(6) of the Act states that ‘a person is not a member of a couple if a determination is made under section 24 is in force in relation to the person’. Subsection 24(2) provides that a person may be treated as not being a member of a couple where:
(a)a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
CONSIDERATION
Is Mr Agueci a member of a couple?
For the purpose of forming an opinion about the nature of the relationship between Mr Agueci and Mrs Agueci I will consider the criteria set out in subsection 4(3) of the Act and any other relevant circumstances.
The financial aspects of the relationship
The Secretary contends that the Applicant and Mrs Agueci have continued to pool their financial resources beyond April 2022.[17] Mr Agueci and Mrs Agueci live together in a property (the Katoomba property) which Mr Agueci purchased before they married. The property is unencumbered, and Mr Agueci’s sister owns 25 percent, and Mr Agueci owns 75 percent. Mr Agueci considers that Mrs Agueci is entitled to part of the property by virtue of their marriage and intends that his share of the property will be passed onto her upon his passing.
[17] Respondent’s Statement of Facts, Issues and Contentions, [59].
At the hearing Mrs Agueci confirmed she does not pay any rent to reside at the Katoomba property. She also considers herself a part owner of the property because she and Mr Agueci are married and she expects to inherit his share of the house upon his passing.
Mrs Agueci claims she cannot afford to leave the Katoomba property. She gave evidence that she may move out of the property at some point, but she did not know how long she intended to remain living in the property and confirmed she had no concrete plans to do so.
Mr Agueci supported Mrs Agueci financially until she moved to Australia and began working. He paid for the costs associated with her obtaining a visa and provided money to support her family in the Philippines when they were dating.
Mr Agueci and Mrs Agueci maintained 2 joint bank accounts which were closed on 26 August 2018 and 30 December 2018 respectively.[18] The Secretary has identified transactions between 12 October 2021 and 17 March 2023 which suggest Mr Agueci and Mrs Agueci continue to share household bills and pool financial resources after closing their joint accounts.[19]
[18] Supplementary T-Documents, ST5, p.139-367.
[19] Respondent’s Statement of Facts, Issues and Contentions, [58].
At the hearing, Mr Agueci was asked about a transfer of $5,000 to Mrs Agueci made on 12 October 2021. [20] He explained that he gave the money to Mrs Agueci to support her family in the Philippines following the death of her sister.
[20] Ibid; Supplementary T-Documents, ST5, p.307.
Prior to separating, Mr and Mrs Agueci split household bills equally. Mr Agueci stated that Mrs Agueci continues to pay half of the utility bills because he cannot afford to pay them owing to his limited income. Mrs Agueci confirmed the same in her oral evidence. Mrs Agueci said that she and Mr Agueci had experienced difficulties paying bills when she did not get enough hours of work. She said that when they were married Mr Agueci would cover any shortfall on her part, but has not done so since they separated. Despite Mrs Agueci’s sister residing with her, Mr and Mrs Agueci continue to share the bills equally.
At the hearing Mr Agueci confirmed his pension is affected by Mrs Agueci’s income from paid employment. He stated that because Mrs Agueci is employed on a casual basis and her hours vary, he is required to report her earnings to the Agency each fortnight. When she earns more, Mr Agueci’s pension is reduced.
As of 31 December 2019, there was no beneficiary to Mrs Agueci’s superannuation.[21] Mrs Agueci confirmed in the SUOR form dated 9 May 2022 and before the AAT1, that Mr Agueci was nominated as beneficiary under her superannuation.[22] She confirmed at the hearing this had since been changed and her sister is now the nominated beneficiary because she takes care of her.
[21] Supplementary T-Documents, ST4, p.135-137.
[22] T-Documents, T2, p.7; T4, p. 55; T6, p.74.
Based on the evidence, I am satisfied that Mr Agueci and Mrs Agueci have a joint interest in the Katoomba property. Should they separate, Mr Agueci would be required to liquidate the Katoomba property and allocate the funds between himself, his sister and Mrs Agueci. Should that happen, both Mr and Mrs Agueci expect they would be unable to afford an equivalent standard of accommodation. I consider this is a significant factor in choosing to maintain their existing arrangement.
I am satisfied that Mr Agueci and Mrs Agueci shared household costs including utilities and, that Mr Agueci intends that the property will pass to Mrs Agueci upon his death.
I find that the financial aspects are strongly indicative of Mr and Mrs Agueci being members of a couple from 27 April 2022 onwards.
The nature of the household
In the SUOR forms, both Mr and Mrs Agueci confirmed that they each have their own bedrooms and bathroom, share household tasks of cleaning and washing, that Mr Agueci tends to the garden and, each do their own cooking and grocery shopping.[23]
[23] Ibid, T4, p.48-60; T6, p.67-79.
Mr Agueci gave evidence that he and Mrs Agueci began sleeping separately soon after their separation. He said the Katoomba property is essentially divided in two and each have their own entry.
Mrs Agueci said she and Mr Agueci have not slept in the same room for 3 years. She gave evidence that her sister is living with her and they sleep together in one bed. Mrs Agueci’s sister is currently studying and Mrs Agueci was unsure how long they would maintain their current living arrangement.
The Katoomba property includes a granny flat. Mrs Agueci said she chose to remain in the main house rather than relocate to the granny-flat because she has a separate room in the house.
I accept that Mr and Mrs Agueci have lived in separate areas of the Katoomba property and distribute responsibility for some household tasks between themselves.
Mrs Agueci described having a cordial relationship with Mr Agueci but one that is different from when they were a couple. She and Mr Agueci say ‘hello’ if they see each other. She said he no longer helps her and, if she needs help or care it is provided by her sister. As her sister does not drive, she and her sister travel by taxi to medical appointments.
I find that overall, the living arrangements suggest Mr Agueci is not a member of couple.
The social aspects of the relationship
In the SUOR forms both Mr and Mrs Agueci indicated that their relatives, family, and regular associates do not consider them to be partnered. They told the AAT1 that they go out separately and that they had not been invited out together for more than a year. However, Mrs Agueci had not told her friends she and Mr Agueci had separated.[24]
[24] Ibid, T2, p.8-9.
Antonio Bruccileri is Mr Agueci’s friend and neighbour. He gave evidence at the hearing and provided a statement dated 19 June 2023. Mr Bruccileri came to Australia in 1968 with Mr Agueci and they have resided on the same street for the last 12 years. In his statement, Mr Bruccileri writes that Mr Agueci used to bring Mrs Agueci with him when he visited but began to visit without her. Mrs Agueci’s absence prompted Mr Bruccileri to think something was ‘very wrong’. He asked Mr Agueci who informed him that he and Mrs Agueci had separated because he wanted to ‘live his life free’. At the hearing, Mr Bruccileri estimated the conversation took place 2 years prior.[25]
[25] Supplementary T-Documents, ST2, p.130.
Kimberly Hernandez is a colleague of Mrs Ageuci who has known her for 5 years. Mrs Hernandez gave evidence at the hearing and prepared a statement dated 22 June 2023. She confirmed Mr Agueci does not accompany Mrs Agueci when she goes out. Mrs Hernandez said she rarely saw Mr Agueci because he stays in his room when she visits Mrs Agueci at the Katoomba property. If she does see Mr Agueci, Mrs Hernandez writes he only ever says ‘hello’. [26] Mrs Hernandez gave evidence that Mr Agueci attended social events with Mrs Agueci before the COVID-19 pandemic which began in early 2020. Mrs Hernandez found out Mrs Agueci had separated from Mr Agueci approximately 2 years ago when she was told by one of their colleagues.
[26] Ibid, p.131.
Mrs Agueci gave evidence that she saw Mrs Hernandez outside of work and they regularly socialised with other Filipino women when they had free time. She said that Mr Agueci never went with her to meet her friends, either prior to or after their separation. She could not recall the last time they went out together before they separated and indicated that they did not go out very often prior to separating and not at all after.
In a medical certificate dated 10 Mary 2023, General Practitioner Dr Kathryn Jenner records that during the consultation Mrs Agueci had told her she has separated from her husband.[27]
[27] Ibid, ST1, p.128.
In the SUOR form, Mr Agueci stated that both he and Mrs Agueci are both private people who do not talk about their private lives with others.[28] Consistent with this, the evidence suggests that Mr and Mrs Agueci have not been proactive in informing their friends that they are no longer members of a couple.
[28] T-Documents, T4, p.59.
I find that the social aspects are indicative that Mr and Mrs Agueci are not member of a couple and are separated under one roof.
Sexual relationship
Mr Agueci no longer has a sexual relationship with Mrs Agueci and this is accepted by the Secretary.
The Secretary submits that the absence of a sexual relationship is not a determinative factor in considering if an applicant is a member of a couple. I am referred by the Secretary to the matter of Gordon and Secretary, Department of Employment and Workplace Relations where the Tribunal noted that a sexual relationship was “…one element indicating the nature of the relationship between two people and must be carefully considered but is not alone conclusive in establishing they are not members of a couple”.[29]
[29] [2006] AATA 792, [34].
I acknowledge that the absence of a sexual relationship is not determinative of the lack of a couple like relationship, however, I find that this consideration does not support Mr Agueci being a member of a couple.
The nature of the people’s commitment to each other

Mr and Mrs Agueci remain legally married to each other. Mrs Agueci’s evidence was that she currently considers Mr Agueci a friend. When asked at the hearing if she would support Mr Agueci if he was unwell, she said that he has his sister who has been his nominated next of kin for 2 years, and indicated she would expect her to take care of him. Mr Agueci told the AAT1 that Mrs Agueci had not helped him when he had a stroke, had a stent put in or, in attending medical appointments.[30]
[30] T-Documents, T2, p.9.
In 2020 Mrs Agueci required medical treatment. Mr Agueci assisted her during her recovery including by driving her to medical appointments. Mr Agueci said that this was before they separated. In the SUOR form Mr Agueci wrote that he would provide support for Mrs Agueci ‘only if necessary’.[31] Should she require assistance now, it would be provided by her sister. However, Mr Agueci said he would be prepared to help her if she needed it, just as he would help anyone in need. He confirmed that he would care for Mrs Agueci if she was sick – just as he would care for anyone in similar circumstances - including, by way of example, the representative for the Secretary.
[31] Ibid, T4, p.58.
Mrs Agueci recalled completing the SUOR in which she indicated there was a possibility she would get back together with Mr Agueci. At the hearing she indicated that this was no longer a possibility.
Mr Agueci was taken through some of his responses to questions in the SUOR form he completed on 24 April 2022.[32] When asked why he described his relationship with Mrs Agueci as ‘just a friend’, he told the Tribunal that she is not an enemy and is someone he can live with like any friend. Mrs Agueci had nominated Mr Agueci as her emergency contact and he explained that she did not have any family in Australia at that time. Since the arrival of her sister, Mrs Agueci no longer needs Mr Ageuci to be an emergency contact and he is no longer regarded as such.
[32] Ibid, p.48-60.
Taking into account the length of their relationship and, that Mrs Agueci had only recently arrived in Australia and did not have an established family or social network, I do not consider she and Mr Agueci have an ongoing commitment to each other which is indicative of their being members of a couple. Some of the circumstances identified by the Secretary can reasonably be explained by Mr Agueci’s appreciation of the fact that Mrs Agueci arrived in Australia without a family or network of support. The evidence is that Mr Agueci has withdrawn from his commitments as Mrs Agueci has established herself, formed friendships and now been joined by her sister on whom she can rely.
Overall, I do not consider that this factor supports Mr Agueci being a member of a couple in a relationship with Mrs Agueci.
CONCLUSION
The Secretary acknowledges that Mr and Mrs Agueci have had difficulties in their relationship but maintains they were members of a couple from 27 April 2022 and remain so. The Secretary notes that they have continued to pool financial resources, contribute equally to the household, and maintain a commitment to each other through providing mutual support and care.
The Guide acknowledges that generally, 2 people living separated under one roof are more likely to live similarly to 2 sharers and will be expected to split bills, do their own shopping, cooking, and washing and have separate living arrangements, as is the case with Mr and Mrs Agueci.
Mr Agueci is 75 years of age. Should he and Mrs Agueci separate, the Katoomba property would be sold, and the proceeds distributed between Mr Agueci, his sister and Mrs Agueci. Both Mr and Mrs Agueci fear losing the Katoomba property and with it the standard of accommodation they are currently able to enjoy. I accept this is a strong factor in their intention to maintain their current living arrangement.
I found Mr Agueci to be a credible witness who gave honest answers to questions even when those answers may not have furthered his application. His willingness to assist Mrs Agueci if she required help for her medical condition is accepted as being consistent with his values rather than indicative of a particular commitment to Mrs Agueci.
Having regard to the totality of the relationship and the specific factors identified in section 4(3) of the Act, I am satisfied that Mr Agueci is not a member of a couple.
DECISION
The decision under review is set aside and remitted to the Secretary for redetermination with the finding that Mr Agueci was not a member of a couple from 27 April 2022.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

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Associate
Dated: 2 April 2024

Date(s) of hearing: 25 January 2024

Applicant: In-person

Solicitors for the Respondent: M. Gauci, Hunt & Hunt Lawyers

Date(s) of hearing:	25 January 2024
Applicant:	In-person
Solicitors for the Respondent:	M. Gauci, Hunt & Hunt Lawyers